Canada’s new anti-spam law lacks clarity

More than 150 years ago, one of the characters in Oliver Twist by Charles Dickens claimed that “the law is an ass.” This claim comes to mind whenever laws are unclear, because unclear laws waste our time, and create fear and anxiety.

Canada’s new anti-spam legislation, which comes into force on July 1, 2014, prohibits sending “commercial electronic messages” without the consent of recipients.

A “commercial electronic message” is one that “has as its purpose, or one of its purposes, to encourage participation in a commercial activity….”

A “commercial activity” includes anything that is of a “commercial character, whether or not the person who carries it out does so in the expectation of profit . . . .”

Unfortunately, this new law does not define “commercial.”

The on-line Merriam-Webster dictionary defines “commercial” as: (1) related to or used in the buying and selling of goods and services; (2) concerned with earning money; and (3) relating to or based on the amount of profit that something earns.

To determine whether our monthly email newsletter, the Justice Update, is a “commercial electronic message”, the JCCF has contacted Industry Canada, the Office of the Minister of Industry, and the Canadian Radio-television and Telecommunications Commission (CRTC). To no avail. It seems that the government is not entirely sure of how its own legislation applies to email newsletters sent out by registered charities.

We at the JCCF believe that this monthly email newsletter is not “commercial” in any sense. The Justice Update contains information about the activities and achievements of the Justice Centre for Constitutional Freedoms (JCCF), including our court actions and publications. But the CRTC may view it differently, and penalties for violating this new law extend up to one million dollars for individuals and ten million dollars for corporations.